March 12, 2009

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Securities Law Update: SEC Requires Electronic Filing of Form D

Starting on March 16, 2009, companies selling securities under Regulation D must electronically file Form D with the Securities and Exchange Commission ("SEC").

Updated Form D Information Requirements

Form D is a notification filed with the SEC by companies issuing securities in reliance on the exemption from registration under Regulation D or Section 4(6) of the Securities Act of 1933. Issuers must file Form D 15 calendar days after the date of the first sale of securities in the offering. Issuers that have decided to proceed with an offering may file their Form D with the SEC prior to making their first sale of securities. The SEC revised the content of Form D as of September 15, 2008. Between September 15, 2008 and March 15, 2009, issuers were allowed to use the newly revised version or the prior version of Form D. The newly revised Form D contains information about the issuer, the offering and the exemption claimed and has been reorganized into 16 numbered categories.

The SEC's changes to Form D also clarify when an amendment to a previously filed Form D is necessary. Issuers must file an amended Form D under the following circumstances:

  • to correct a material mistake of fact or error in the previously filed notice, as soon as practicable after discovery of the mistake or error;
  • subject to numerous exceptions, to reflect a change in the information provided in the previously filed notice, as soon as practicable after the change; and
  • annually, on or before the first anniversary of the most recent previously filed notice, if the offering is continuing at that time.

Regardless of the reason for the amendment, the issuer must provide current information in response to all sections of Form D.

Electronic Filing

As of March 16, 2009,
the SEC's transition period for Form D will end and issuers will be subject to mandatory electronic filing of the newly revised Form D. Issuers filing Form D electronically with the SEC must become EDGAR filers by obtaining a unique Central Index Key ("CIK") number and related access codes. EDGAR stands for Electronic Data Gathering, Analysis and Retrieval system and is the SEC's online filing system. Once an issuer has its CIK number and EDGAR access codes, it can log on to the EDGAR system and file Form D electronically.

Increased Public Access

Electronic filing of Form D will facilitate greater public access to information about private offerings. Prospective investors will be able to access the EDGAR Company Search to determine whether a particular company has filed a Form D. Investors can also request a copy of any Form D from the SEC.

Some states also require filing of Form D notices and amendments, along with filing fees. For information on state filing requirements, visit www.NASAA.org.

A copy of the SEC's final rule release regarding the revisions to Form D and electronic filing (Release No. 33-8891) is available at www.sec.gov. This Securities Law Update was prepared by Jessica Benford. If you have any questions or would like to obtain additional information about SEC regulatory developments, please contact James Brophy, Tara Pauls or Jessica Benford.

 

 

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